Following a contested case hearing held on July 24, 2000, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, resolved the disputed issues by determining that the date of injury was _________; that the appellant (claimant) did not suffer a compensable injury on __________, _____, or _____, _______; that the respondent (self-insured) disputed the claimed injury within 60 days, but not within seven days, of receiving written notice; and that the claimant did not have disability. The claimant appeals, arguing that the evidence established that she suffered either a specific injury on _________, or a repetitive trauma injury on _________. The claimant also argues that the self-insured waived the right to dispute compensability because it failed to dispute an injury within seven days of receiving notice of her injury. Finally, the claimant argues she had disability. The self-insured responds that there is sufficient evidence in the record to support the decision of the hearing officer.
DECISION
Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.
The claimant testified that she worked for the self-insured working on streets. The claimant testified that her job involves running a jackhammer and shoveling asphalt. The claimant testified that on _________, she loaded 60-pound boxes of asphalt into a truck, loaded asphalt into an asphalt heater and used a hose to place asphalt into the cracks of streets. The claimant testified that the next day her duties involved only riding around in a truck. The claimant was off work for three days until _________. The claimant testified that on that day she suffered severe back pain and went to her treating doctor. The claimant worked light duty the following day and was sent home due to back pain the day after that. There was evidence that the self-insured received written notice of the claimant’s injury on _________, and disputed the injury on _________. The parties stipulated that the self-insured disputed the claimant’s injury within 60 days.
The claimant contends she either suffered a specific injury to her back on _________, due to the heavy work she was doing or a repetitive trauma injury with a date of injury of _________, which she asserts is the first day she knew her injury was related to work. The hearing officer found that the claimant failed to prove either a specific injury or a repetitive trauma injury.
The question of whether an injury occurred is one of fact. Texas Workers’ Compensation Commission Appeal No. 93854, decided November 9, 1993; Texas Workers’ Compensation Commission Appeal No. 93449, decided July 21, 1993. Section 410.165(a) provides that the contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer’s decision for factual sufficiency of the evidence we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
A finding of injury may be based upon the testimony of the claimant alone. Houston Independent School District v. Harrison, 744 S.W.2d 298, 299 (Tex. App.-Houston [1st Dist.] 1987, no writ). However, as an interested party, the claimant’s testimony only raises an issue of fact for the hearing officer to resolve. Escamilla v. Liberty Mutual Insurance Company, 499 S.W.2d 758 (Tex. Civ. App.-Amarillo 1973, no writ). In the present case, the hearing officer found no injury contrary to the testimony of the claimant which found some support in the medical evidence. The claimant had the burden to prove she was injured in the course and scope of her employment. Reed v. Aetna Casualty & Surety Co., 535 S.W.2d 377 (Tex. Civ. App.-Beaumont 1976, writ ref’d n.r.e.). In the present case, the claimant’s inability to relate her claimed specific injury on _________, to any specific incident and her lack of symptoms on that date obviously was a factor the hearing officer considered in finding that the claimant did not suffer an injury on that date. Nor did the hearing officer find sufficient evidence to relate the pain the claimant experienced on _________, to repetitive trauma at work. We cannot say that the hearing officer erred as a matter of law in finding the claimant failed to meet her burden of proof to establish a compensable injury.
Next, we consider the claimant’s assertion that the hearing officer erred in his determination that the self-insured did not waive its right to contest compensability in this instance. The determinations by the hearing officer that the self-insured disputed the claim within 60 days, but did not dispute it within seven days, are not appealed. As such, it appears that the claimant’s argument is that, pursuant to Downs v. Continental Cas. Co., No. __________(Tex. App.-San Antonio January 26, 2000), the self-insured has waived its right to contest compensability in this instance because it did not do so within seven days of the date it received written notice of the injury. In Downs v. Continental Cas. Co., No. __________ (Tex. App.-San Antonio August 16, 2000, no pet. h.), the Fourth Court of Appeals in San Antonio issued a decision on rehearing again determining that a carrier waives the right to contest compensability if it fails to either agree to begin payment of benefits or provide written notice of its refusal to pay within seven days after it receives written notice of an injury. On August 28, 2000, the Executive Director of the Texas Workers’ Compensation Commission (Commission), issued Advisory 2000-07 acknowledging the Court of Appeals decision on rehearing in Downs. However, the advisory states that the “August 16th decision in the Downs case should not be considered as precedent at least until it becomes final upon completion of the judicial process.” In addition, the Director of the Hearings Division has informed the Hearings Division that the Commission’s position is that a carrier has 60 days to contest compensability and that hearings staff are to follow the Commission’s position statewide pending final resolution of Downs. The Director of Hearings reissued this directive following the issuance of the decision on rehearing in Downs. Based on these directives, the hearing officer did not err in not applying waiver.
Finally, with no compensable injury found, there is no loss upon which to find disability. By definition, disability depends upon a compensable injury. See Section 401.011(16).
The decision and order of the hearing officer are affirmed.
Gary L. Kilgore – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Robert W. Potts – Appeals Judge